§ 47-26A.1. Request for application of prior zoning regulation.

A.

If a new project as defined herein, is not permitted based on an amendment to a zoning regulation in effect on or after September 4, 1996 (hereinafter referred to as the "adoption date") approval may be granted for application of the zoning regulation in effect immediately prior to the amendment in order to permit a new project in accordance with the provisions of this section.

B.

For purposes of this Section 47-26A, a new project shall be defined as a project which requires construction of a building or structure on a vacant parcel of property or reconstruction of a building which has been or proposed to be destroyed by more than fifty percent (50%) of its replacement value, or more than fifty percent (50%) of the total gross floor area of the building, or more than fifty percent (50%) of the area of a structure.

C.

This section does not apply to a new project undertaken by a government, school, religious, philanthropic or other not for profit organization.

D.

A property owner who cannot construct a new project because of an amendment to a zoning regulation adopted on or after the adoption date, may make application for approval of the application of the zoning regulation in effect immediately prior to the amendment in order to permit the new project.

E.

In order to apply for approval under this Section 47-26A the following requirements must be met:

1.

A complete application for a development permit for the new project shall be submitted to the department. The application shall meet all the requirements for a site plan level IV permit as provided in Section 47-24, Development Permits and Procedures.

2.

The new project must meet all regulations of the ULDR except for the zoning regulation which has been amended on or after the adoption date and but for the amendment of such zoning regulations, the new project would meet all provisions of the ULDR.

F.

Review process. The review process under this section is as follows:

1.

The property owner shall submit a request for application of a prior zoning regulation to the department. The department shall review same and within ten (10) days of the date of submittal, the department shall provide in writing its response to the request and shall state whether the new project meets the provisions of the ULDR except a zoning regulation in effect immediately prior to the adoption date.

2.

If the new project meets all of the ULDR except a zoning regulation in effect immediately prior to the adoption date, the property owner shall be notified in writing of same by the department and the property owner shall file additional information with regard to its request including the following:

a.

A statement regarding the existing use of the subject property,

b.

Whether a vested right to a specific use of real property exists,

c.

A description regarding how the new project meets the criteria in subsection G and any information supporting same, and

d.

Any other information deemed necessary by the department to review the request.

3.

Within no less than twenty (20) business days and not more than sixty (60) business days from submittal of the applicant's complete request, the planning and zoning board shall hold a public meeting to consider the application and the record and recommendation forwarded by the department and shall hear public comment on the application.

4.

The planning and zoning board shall determine whether the request meets the criteria provided in subsection G, and shall forward its recommendation to the city commission.

5.

During a public meeting, the city commission shall consider the request and the record and recommendation forwarded by the department and planning and zoning board and shall hear public comment on the request.

6.

If the city commission determines that the request meets the criteria provided in subsection G, it shall take action required to approve the request with such conditions necessary to ensure compliance with the criteria provided herein. If the city commission determines that the request does not meet the criteria, the city commission shall deny the request.

G.

Criteria. The review criteria for approving a request is as follows:

1.

The new project is consistent with the city's comprehensive plan.

2.

The new project meets all of the requirements of the ULDR except for the zoning regulation which has been amended on or after the adoption date and, but for the amendment of such zoning regulation, the project would meet all the provisions of the ULDR.

3.

The new project is suitable for the property and meets the Neighborhood Compatibility Criteria as provided in Sec. 47-25.3.

4.

Restricting the property from being used for the proposed new project as a result of the new zoning regulation unreasonablyrestricts the use of the property such that the property owner bears a disproportionate share of a burden imposed for the good of the public which in fairness should be borne by the public at large.

5.

The new project if approved protects the public interest served by the regulation at issue and is the appropriate relief necessary to prevent the governmental regulation from unreasonably restricting the use of the real property.

6.

No action of the city which prohibits a new project from being built based on an amendment to the ULDR on or after the adoption date and which project is eligible to be reviewed under this section shall be deemed final until a denial of an application under this section.

H.

If a request meets the criteria provided herein, the city commission may approve the request in accordance with the following:

1.

Approval shall be of a site plan which meets all of the zoning regulations of the ULDR except a zoning regulation in effect immediately prior to the adoption date.

2.

Approval shall be by ordinance adopted and noticed in accordance with the process for a rezoning of property as provided in Sec. 47-24.4.

3.

Approval shall be contingent upon and subject to a development agreement to be executed by the city and the property owner. The development agreement shall specify the development standards applicable to the property, any conditions imposed as a part of the approval and shall reference the approved site plan. Such agreement shall be recorded in the public records of the county and shall act as a restrictive covenant running with the land.

I.

A change to a project approved pursuant to this section which meets the requirements of the ULDR may be approved subject to the provisions of a site plan level IV permit as provided in Section 47-24, Development Permits and Procedures. A change to an approved development which is not permitted based on the application of a new zoning regulation which was not considered as part of an approved request shall be considered as a new request and reviewed in accordance with the provisions of this section.

(Ord. No. C-97-19, § 1(47-26.A.1), 6-18-97)